A Proposal to Introduce the Right to a Healthy Environment into the European Convention Regime By Brennan Van Dyke

INTRODUCTION

The notion that human beings have a right to a healthy environment is far more controversial in Europe than it ought to be. Fundamental human rights, those recognized in the European Convention for the Protection of Human Rights and Fundamental Freedoms (European Convention or Convention)1 as well as in other leading international texts on human rights, have long protected the essence of the right to a healthy environment. Nevertheless, resistance to acknowledging a fundamental human right to a healthy environment remains strong. This Article will show that the emerging concept of a human right to a healthy environment fits within the established European comprehension of human rights and should be incorporated into the European Convention. Furthermore, this Article will demonstrate that traditional notions of humans rights embrace a right to a healthy environment and that such a right is justiciable.

The next part of this Article will discuss the common ground that exists between traditional conceptions of human rights and the emerging conception of environmental rights. Part II will look to the common ground between these two concepts in order to define the human right to a healthy environment.

Part III will explore and explode the resistance in the international human rights community to placing the right to a healthy environment within the catalogue of fundamental human rights. In particular, this part will undermine the argument that it is impossible to prove a causal link between specific acts by an identified actor or group of actors and the violation of a claimant's right to a healthy environment. In addition, this part will refute the proposition that the human right to a healthy environment cannot be defined with sufficient precision as to make it justiciable. Finally, this part demonstrates that the human right to a healthy environment is a “civil and political” right rather than an “economic and social” right and that, therefore, the right to a healthy environment belongs in the European Convention rather than the European Social Charter.

Part IV will advocate petitioning the European Commission of Human Rights (Commission) and the European Court of Human Rights (Court) in Strasbourg as a means by which to overcome the resistance to accepting the right to a healthy environment. This part will provide a detailed analysis of a hypothetical case that implicates both the human right to a healthy environment and an existing Convention right: the right to life. The purpose of the exercise will be to demonstrate that the Strasbourg Organs are capable of adjudicating cases in which environmental degradation implicates a human right, despite difficult issues of causation and delimitation. This part will close by arguing that proponents of the human right to a healthy environment should bring a series of similar cases in response to the objections that this important human right is nonjusticiable.

It is important that Europe recognize the human right to a healthy environment among the few, most cherished, fundamental human rights. Today's post-industrial Europe not only must contend with acts of violence but also confronts less obvious threats to life and health. Threats presented by environmental degradation are no less real than more direct physical assaults, yet those responsible are often able to evade the existing sanctions provided by human rights law. Thus, it is necessary to recognize a right to ensure traditional levels of protection to life and health against unacceptable abuses resulting from environmental degradation. Protection of life and health command moral force sufficient to warrant engaging the extraordinary protection afforded to Europe's other cherished human rights.